Exhibit 9
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AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION made this 15th day of
August, 1990, by and between The Benchmark Tax-Exempt Fund (the "Trust"), a
Massachusetts business trust established under an Agreement and Declaration of
Trust dated July 15, 1982, as amended, on behalf of the Short-Term Diversified
Portfolio, a series of the Trust (the "Trust Portfolio"), and The Benchmark
Money Market Fund Diversified Assets and Government Portfolios ("TBF"), a
Massachusetts business trust established under an Agreement and Declaration of
Trust dated July 15, 1982, as amended, on behalf of the Tax-Exempt Portfolio, a
Portfolio of TBF (the "TEP").
WHEREAS, the Trust and TBF are diversified, open-end registered
investment companies of the management type; and
WHEREAS, the Trust and TBF are authorized to issue their units of
beneficial interest in separate series, each of which maintains a separate and
distinct portfolio of assets;
WHEREAS, the Trust Portfolio is one series of the Trust and the TEP is
one Portfolio of TBF;
WHEREAS, the Trust Portfolio owns securities which are assets of the
character in which the TEP is permitted to invest;
WHEREAS, the Board of Trustees of the Trust and TBF have determined
that the transfer of all of the assets and liabilities of the Trust Portfolio to
the TEP is in the best interest of the Trust and TBF because it would provide
more efficient management and administration of those assets and that the
interests of the existing unitholders of the Trust and TBF would not be diluted
as a result of this transaction;
WHEREAS, the parties hereto intend to provide for the reorganization
of the Trust Portfolio through the acquisition by the TEP of all of the assets,
subject to all of the liabilities, of the Trust Portfolio in exchange for units
of beneficial interest, no par value, of the TEP (the "TEP Units"), the
termination of the Trust Portfolio and the distribution to its unitholders of
such TEP Units, all pursuant to the provisions of Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended (the "Code");
NOW THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Plan of Reorganization and Liquidation.
(a) The Trust, on behalf of the Trust Portfolio, shall assign,
sell, convey, transfer and deliver to the TEP at the closing provided for in
Section 2 (hereinafter called the "Closing") all of the then existing assets of
the Trust Portfolio of every kind and nature. In consideration therefor, the TEP
shall at the Closing (i) assume all of the Trust Portfolio's obligations and
liabilities then existing, whether absolute, accrued, contingent or otherwise,
including without limitation all fees and expenses in connection with the
transactions contemplated hereby and (ii) deliver to the Trust Portfolio a
number of full and fractional TEP Units equal to the number of full and
fractional units of the Trust Portfolio then outstanding. The number of units of
the Trust Portfolio issued and outstanding and the number of TEP Units to be
issued to the Trust Portfolio shall in each case be determined by the Custodian
to both the Trust and TBF as of 3:30 p.m., Chicago time, on the Closing Date (as
defined in Section 2). The determination of said Custodian shall be conclusive
and binding on the Trust Portfolio, the TEP and their respective unitholders.
(b) Upon consummation of the transactions described in paragraph
(a) of this Section 1, the Trust Portfolio shall distribute in complete
liquidation pro rata to its unitholders of record as of the Closing Date the TEP
Units received by the Trust Portfolio. Such distribution shall be accomplished
by the establishment of an open account on the unit records of the TEP in the
name of each unitholder of the Trust Portfolio representing a number of TEP
Units equal to the number of units of the Trust Portfolio owned of record by the
unitholder at the Closing Date. Certificates for units of the Trust Portfolio
issued prior to the reorganization, if any, shall represent outstanding units of
the TEP following the reorganization. In the interest of economy and
convenience, certificates representing the TEP will not be physically issued.
(c) As promptly as practicable after the Closing Date, the Trust
Portfolio and the Trust shall be terminated pursuant to the provisions of the
laws of the Commonwealth of Massachusetts and the Trust's Agreement and
Declaration of Trust and an application prepared, executed and filed with the
Securities and Exchange Commission (the "SEC") seeking, and the Trust shall use
its best efforts to obtain, an SEC order declaring that the Trust has ceased to
be a registered investment company. After the Closing Date, the Trust shall not
conduct any business except in connection with its liquidation, termination and
deregistration.
2. Closing and Closing Date. The Closing shall occur at the offices
of the Distributor at 3:30 p.m., Chicago time, on
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October 5, 1990 or at such later time and date, or at such other location, as
the parties may mutually agree (the "Closing Date"). All acts taking place at
the Closing shall be deemed to take place simultaneously on the Closing Date
unless otherwise provided.
3. Conditions Precedent. The obligation of the Trust and TBF to
effect the transactions contemplated hereunder shall be subject to the
satisfaction of each of the following conditions:
(a) All filings shall have been made with, and all authority and
orders shall have been received from, the SEC and state securities commissions
as may be necessary in the opinion of Drinker Xxxxxx & Xxxxx to permit the
parties to carry out the transactions contemplated by this Agreement.
(b) The Trust and TBF shall have received an opinion of Drinker
Xxxxxx & Xxxxx substantially to the effect that for federal income tax purposes:
(i) the acquisition of the assets and assumption of the liabilities of the Trust
Portfolio by the TEP in return for TEP Units followed by the distribution of
such units to Trust Portfolio unitholders will constitute a "reorganization"
within the meaning of Section 368(a)(1)(F) of the Code and the TEP and the Trust
Portfolio will each be "a party to the reorganization" within the meaning of
Section 368(b) of the Code; (ii) no gain or loss will be recognized by the Trust
Portfolio upon the transfer of its assets and liabilities to the TEP; (iii) the
tax basis of the assets of the Trust Portfolio in the hands of the TEP will be
the same as the tax basis of such assets in the hands of the Trust Portfolio
immediately prior to the transfer; (iv) the TEP's holding period for the assets
of the Trust Portfolio transferred to TEP will include the period during which
such assets were held by the Trust Portfolio; (v) no gain or loss will be
recognized by the TEP upon the receipt of the assets of the Trust Portfolio in
exchange for TEP Units and the assumption by the TEP of the liabilities of the
Trust Portfolio; (vi) no gain or loss will be recognized by the unitholders of
the Trust Portfolio upon the receipt of TEP units in exchange for their units in
the Trust Portfolio; (vii) the basis of the TEP Units received by the
unitholders of the Trust Portfolio will be the same as the basis of the units of
the Trust Portfolio exchanged therefor; and (viii) the holding period of the TEP
Units received by the unitholders of the Trust Portfolio will include the
holding period of the units of the Trust Portfolio exchanged therefor, provided
that at the time of the exchange the units of the Trust Portfolio were held as
capital assets; and as to such other matters as they may reasonably request;
(c) This Agreement and Plan of Reorganization and the
reorganization contemplated hereby shall have been approved
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by the Board of Trustees of the Trust and of TBF and shall have been recommended
for approval to the unitholders of the Trust Portfolio by the Trust's Board of
Trustees;
(d) This Agreement and Plan of Reorganization and the
reorganization contemplated hereby shall have been approved by the affirmative
vote of the holders of a majority of the outstanding units of beneficial
interest of the Trust Portfolio (as defined in the Trust's Agreement and
Declaration of Trust) entitled to vote thereon;
(e) TBF on behalf of the TEP shall have entered into an
Investment Advisory Agreement with The Northern Trust Company, such Agreement to
be substantially identical in form and substance as to the TEP to the Investment
Advisory Agreement in effect at the Closing Date between the Trust and said
other party, and such Agreement shall have been approved by the Trustees of TBF
and, to the extent required by law, by the Trustees of TBF who are not
"interested persons" of TBF as defined in the Investment Company Act of 1940
(the "1940 Act") as well as by the unitholders of the TEP (it being understood
that the Trust, as sole unitholder of the TEP prior to the consummation of the
reorganization, hereby agrees and is authorized to vote for such approval); and
(f) The Trustees of TBF who are not "interested persons" of TBF
as defined in the 1940 Act shall have selected as auditors for TBF such auditors
as shall have been selected and ratified for the Trust and such selection shall
have been ratified by the unitholders of TEP (it being understood that the
Trust, as sole unitholder of the TEP prior to the consummation of the
reorganization, hereby agrees and is authorized to vote for such ratification).
(g) The Trust agrees to file with the SEC proxy materials (the
"Proxy Statement") complying in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended, the 1940 Act, and applicable
rules and regulations thereunder, relating to a meeting of its unitholders to be
called to consider and act upon the transactions contemplated herein. TBF agrees
to provide the Trust with information applicable to TBF required under said Acts
and such rules and regulations for inclusion in the Proxy Statement.
4. Amendment. This Agreement may be amended at any time by action of
the Trustees of the Trust and the Trustees of TBF, notwithstanding approval
thereof by the unitholders of the Trust, provided that no amendment shall have a
material adverse effect on the interests of the unitholders of the Trust and
TBF.
5. Termination. The Trustees of the Trust and the
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Trustees of TBF may terminate this Agreement and abandon the reorganization
contemplated hereby, notwithstanding approval thereof by the unitholders of the
Trust, at any time prior to the Closing, if circumstances should develop that,
in their judgment, make proceeding with the Agreement inadvisable.
6. No Broker's or Finder's Fee. The Trust and TBF each represent
that there is no person who has dealt with it, who by reason of such dealings is
entitled to any broker's or finder's or other similar fee or commission arising
out of the transactions contemplated by this Agreement and Plan of
Reorganization.
7. No Survival of Representations, etc. The representations,
warranties, covenants and agreements of the parties contained herein shall not
survive the Closing Date, except for the provisions of Section 1(c).
8. Waiver. The Trust or TBF, after consultation with their
respective counsel and by consent of their respective Boards of Trustees,
Executive Committees or an officer authorized by such Boards of Trustees, may
waive any condition to their respective obligations hereunder if, in their or
such officer's judgment, such waiver will not have a material adverse effect on
the interests of the unitholders of the Trust and TBF.
9. Reliance. All covenants, agreements, representations and
warranties made under this Agreement and Plan of Reorganization shall be deemed
to have been material and relied upon by each of the parties notwithstanding any
investigation made by such party or on its behalf.
10. Notices. All notices required or permitted under this Agreement
and Plan of Reorganization shall be given in writing (i) to the Trust at 0000
Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and 00 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000; and (ii) to TBF at 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and 00 X.
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 or at any such other place as shall be
specified in a written notice given by either party to the other party to this
Agreement and Plan of Reorganization, and shall be validly given if mailed by
first class mail, postage prepaid.
11. Miscellaneous Provisions. This Agreement and Plan of
Reorganization shall bind and inure to the benefit of the parties and their
respective successors and assigns. It shall be governed by and carried out in
accordance with the laws of the Commonwealth of Massachusetts. It is executed in
several counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one agreement.
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The name "The Benchmark Money Market Fund Diversified Assets and
Government Portfolios" is the designation of the Trustees for the time being
under an Agreement and Declaration of Trust dated July 15, 1982, as amended, and
all persons dealing with TBF must look solely to the TBF property for the
enforcement of any claims against TBF, as neither the Trustees, officers, agents
or unitholders assume any personal liability for obligations entered into on
behalf of TBF. No series of TBF shall be liable for claims against any other
series of TBF. The said Agreement and Declaration of Trust is on file with the
SEC and the Commonwealth of Massachusetts.
The name "The Benchmark Tax-Exempt Fund" is the designation of the
Trustees for the time being under a Declaration of Trust dated July 15, 1982, as
amended, and all persons dealing with the Trust must look solely to the Trust
property for the enforcement of any claims against the Trust, as neither the
Trustees, officers, agents or unitholders assume any personal liability for
obligations entered into on behalf of the Trust. The said Agreement and
Declaration of Trust is on file with the SEC and the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement
and Plan of Reorganization to be executed and delivered by their duly authorized
officers as of the day and year first written above.
THE BENCHMARK MONEY MARKET FUND
DIVERSIFIED ASSETS AND GOVERNMENT
PORTFOLIOS (on behalf of its Tax-Exempt
Portfolio)
By [Signature Illegible]
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President
ATTEST:
(SEAL)
_________________________
Secretary
THE BENCHMARK TAX-EXEMPT FUND (on behalf
of its Short-Term Diversified Portfolio)
By [Signature Illegible]
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President
ATTEST:
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(SEAL)
_________________________
Secretary
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